Opinion
2013-02-14
The PEOPLE of the State of New York, Respondent, v. Jose MARTE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, MANZANET–DANIELS, ROMÁN, CLARK, JJ.
Judgment, Supreme Court, New York County (Thomas Farber, J. at suppression motion; Analisa Torres, J. at jury trial and sentencing), rendered January 3, 2011, convicting defendant of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of five years, unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony, without granting a hearing pursuant to People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992]. Defendant did not dispute the People's contention that defendant was sufficiently known to the victim so as to render the photo identification merely confirmatory, and there was no factual issue requiring a hearing ( see e.g. People v. Rodriguez, 47 A.D.3d 417, 849 N.Y.S.2d 232 [2008],lv. denied10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008];People v. Murray, 247 A.D.2d 292, 668 N.Y.S.2d 457 [1st Dept. 1998],lv. denied92 N.Y.2d 857, 677 N.Y.S.2d 88, 699 N.E.2d 448 [1998] ).
The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations.
The court properly exercised its discretion in admitting evidence that the victim experienced difficulty sleeping following the incident, and that he began seeing a psychiatrist. This evidence was relevant to prove that the victim was brutally beaten during the robbery, especially where a defense witness described the incident as a brief fistfight not resulting in injuries.